After a New York statute that appropriated public funds to
reimburse both church-sponsored and secular nonpublic schools for
performing various services mandated by the State, including the
administration, grading, and reporting of the results of tests,
both state-prepared and teacher-prepared tests, had been held to be
violative of the Establishment Clause of the First Amendment in
Levitt v. Committee for Public Education, 413 U.
, the New York Legislature enacted a new statute
directing payment to nonpublic schools of the costs incurred by
them in complying with certain state-mandated requirements,
including requirements as to testing (pupil evaluation,
achievement, and scholarship and college qualification tests) and
as to reporting and recordkeeping. The new statute, unlike the
earlier version, also provides a means by which state funds are
audited, thus ensuring that only the actual costs incurred in
providing the covered secular services are reimbursed out of state
funds. The District Court ultimately upheld the new statute.
The New York statute does not violate the First
and Fourteenth Amendments. Pp. 444 U. S.
(a) A legislative enactment does not contravene the
Establishment Clause if it has a secular legislative purpose, if
its principal or primary effect neither advances nor inhibits
religion, and if it does not foster an excessive government
entanglement with religion. P. 444 U. S.
(b) The New York statute has the secular purpose of providing
educational opportunity of a quality that will prepare New York
citizens for the challenges of American life. The statutory plan
calls for tests that are prepared by the State and administered on
the premises by personnel of the nonpublic schools, which, however,
have no control over the contents of the tests. Although some of
the tests are graded by nonpublic school personnel, in view of the
nature of the tests, which deal only with secular academic matters,
the grading by nonpublic school employees affords no control to the
school over the outcome of
Page 444 U. S. 647
any of the tests, and there is no substantial risk that the
examinations can be used for religious educational purposes. While
the recordkeeping and reporting services for which the State
reimburses the nonpublic school pertain to furnishing information
regarding the student body, faculty, support staff, physical
facilities, curriculum, and student attendance, and thus are
related to the educational program, nevertheless they are not part
of the teaching process, and cannot be used to foster an
ideological outlook. Thus, reimbursement for the costs of so
complying with state law has primarily a secular, rather than a
religious, purpose and effect. Wolman v. Walter,
433 U. S. 229
controlling. Pp. 444 U. S.
(c) The New York statute is not invalid simply because it
provides for direct cash reimbursement to the nonpublic school for
administering the state-prescribed examinations and for grading
some of them. Grading the secular tests furnished by the State is a
function that has a secular purpose and primarily a secular effect,
and this is not changed simply because the State pays the school
for performing the grading function, rather than paying state
employees or some independent service to perform the task. The same
results obtain as to reimbursement for the recordkeeping and
reporting functions, because they also have neither a religious
purpose nor a primarily religious effect. Pp. 444 U. S.
(d) The New York law provides ample safeguards against excessive
or misdirected reimbursement. The services for which the private
schools are reimbursed are discrete and clearly identifiable, and
the statutory reimbursement process is straightforward and
susceptible to the routinization that characterizes most
reimbursement schemes. On its face, therefore, the New York plan
suggests no excessive entanglement, and the bad faith upon which
any future excessive entanglement would be predicated will not be
read into the plan as an inevitability. Pp. 444 U. S.
(e) The decision in Meek v. Pittenger, 421 U.
, is not to be interpreted as holding that any aid
to even secular educational functions of a sectarian school is
forbidden, or, more broadly still, that any aid to a sectarian
school is suspect, since its religious teaching is so pervasively
intermixed with each of its activities. The District Court in the
instant case properly put the Meek
case and the
together and sustained the
reimbursements involved here because it had been shown with
sufficient clarity that they would serve the State's legitimate
secular ends without any appreciable risk of being used to transmit
or teach religious views. Pp. 444 U. S.
F. Supp. 1123
Page 444 U. S. 648
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BLACKMUN,
J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ.,
p. 444 U. S. 662
STEVENS, J., filed a dissenting opinion, post,
444 U. S.
MR JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is the constitutionality under the First
and Fourteenth Amendments of the United States Constitution of a
New York statute authorizing the use of public funds to reimburse
church-sponsored and secular nonpublic schools for performing
various testing and reporting services mandated by state law. The
District Court sustained the statute. Committee for Public
Education v. Levitt, 461 F.
(1978). We noted probable jurisdiction, 442 U.S. 928
(1979), and now affirm the District Court's judgment.
In 1970, the New York Legislature appropriated public funds to
reimburse both church-sponsored and secular nonpublic schools for
performing various services mandated by the State. The most
expensive of these services was the "administration, grading and
the compiling and reporting of the results of tests and
examinations." 1970 N.Y.Laws, ch. 138, § 2. Covered tests included
both state-prepared examinations and the more common and
traditional teacher-prepared tests. Although the legislature
stipulated that "[n]othing contained in this act shall be construed
to authorize the making of any payment under this act for
Page 444 U. S. 649
worship or instruction," § 8, the statute did not provide for
any state audit of school financial records that would ensure that
public funds were used only for secular purposes.
In Levitt v. Committee for Public Education,
413 U. S. 472
(1973) (Levitt I
), the Court struck down this enactment as
violative of the Establishment Clause. [Footnote 1
] The majority focused its concern on the
statute's reimbursement of funds spent by schools on traditional
teacher-prepared tests. The Court was troubled that,
"despite the obviously integral role of such testing in the
total teaching process, no attempt is made under the statute, and
no means are available, to assure that internally prepared tests
are free of religious instruction."
at 413 U. S. 480
It was not assumed that nonpublic school teachers would attempt in
bad faith to evade constitutional requirements. Rather, the Court
simply observed that
"the potential for conflict 'inheres in the situation,' and,
because of that, the State is constitutionally compelled to assure
that the state-supported activity is not being used for religious
quoting Lemon v. Kurtzman, 403 U.
, 403 U. S. 617
(1971). Because the State failed to provide the required assurance,
the challenged statute was deemed to constitute an impermissible
aid to religion.
The Court distinguished its earlier holdings in Everson v.
Board of Education, 330 U. S. 1
and Board of Education v. Allen, 392 U.
(1968), on grounds that the state aid upheld in
those cases, in the form of bus rides and loaned secular textbooks
for sectarian schoolchildren, was "of a substantially different
character" from that presented in Levitt I. Levitt I,
at 413 U. S. 481
Teacher-prepared tests were deemed by the Court to be an integral
part of the teaching process. But obviously so are textbooks an
integral part of the teaching
Page 444 U. S. 650
process. The crucial feature that distinguished tests, according
to the Court, was that,
"'[i]n terms of potential for involving some aspect of faith or
morals in secular subjects, a textbook's content is ascertainable,
but a teacher's handling of a subject is not.'"
413 U.S. at 413 U. S. 481
quoting Lemon v. Kurtzman, supra
at 403 U. S. 617
Thus, the inherent teacher discretion in devising, presenting, and
grading traditional tests, together with the failure of the
legislature to provide for a method of auditing to ensure that
public funds would be spent exclusively on secular services,
disabled the enactment from withstanding constitutional scrutiny.
Almost immediately, the New York Legislature attempted to
eliminate these defects from its statutory scheme. A new statute
was enacted in 1974, [Footnote
] and it directed New York's Commissioner
Page 444 U. S. 651
of Education to apportion and to pay to nonpublic schools the
actual costs incurred as a result of compliance with certain
state-mandated requirements, including
"the requirements of the state's pupil evaluation program,
Page 444 U. S. 652
the basic educational data system, regents examinations, the
state-wide evaluation plan, the uniform procedure for pupil
attendance reporting, and other similar state prepared examinations
and reporting procedures."
1974 N.Y. Laws, ch 507, § 3. Of signal interest and importance
in light of Levitt I,
the new scheme does not reimburse
nonpublic schools for the preparation, administration, or grading
of teacher-prepared tests. Further, the 1974 statute, unlike the
1970 version struck down in Levitt I,
provides a means by
which payments of state funds are audited, thus ensuring that only
the actual costs incurred in providing the covered secular services
are reimbursed out of state funds. § 7.
Although the new statutory scheme was tailored to comport with
the reasoning in Levitt I,
the District Court invalidated
the enactment with respect to both the tests and the reporting
procedure. Committee for Public Education v.
Levitt, 414 F.
(1976) (Levitt II
). The District Court
understood the decision in Meek v. Pittenger, 421 U.
(1975), to require this result. In Meek,
decided after Levitt I,
this Court held unconstitutional
two Pennsylvania statutes insofar as they provided auxiliary
services and instructional material and equipment apart from
textbooks to nonpublic schools in the State, most of which were
sectarian. The Court ruled that in "religion-pervasive"
institutions, secular and religious education are so "inextricably
intertwined" that "[s]ubstantial aid to the education function of
such schools . . . necessarily results in aid to the sectarian
school enterprise as a whole," and hence amounts to a forbidden
establishment of religion. 421 U.S. at 421 U. S.
was appealed to this Court. We vacated the
District Court's judgment and remanded the case in light of our
decision in Wolman v. Walter, 433 U.
Page 444 U. S. 653
remand, the District Court ruled that, under
"state aid may be extended to [a sectarian] school's educational
activities if it can be shown with a high degree of certainty that
the aid will only have secular value of legitimate interest to the
State and does not present any appreciable risk of being used to
aid transmission of religious views."
461 F. Supp. at 1127. Applying this "more flexible concept,"
the District Court concluded that New York's
statutory scheme of reimbursement did not violate the Establishment
Our jurisdiction to review the District Court's judgment lies
under 28 U.S.C. § 1253.
Under the precedents of this Court, a legislative enactment does
not contravene the Establishment Clause if it has a secular
legislative purpose, if its principal or primary effect neither
advances nor inhibits religion, and if it does not foster an
excessive government entanglement with religion. See Roemer v.
Maryland Public Works Bd., 426 U. S. 736
426 U. S. 748
(1976); Committee for Public Education v. Nyquist,
413 U. S. 756
413 U. S.
-773 (1973); Lemon v. Kurtzman,
403 U.S. at
403 U. S.
In Wolman v. Walter, supra,
this Court reviewed and
sustained in relevant part an Ohio statutory scheme that
authorized, inter alia,
the expenditure of state funds
"[t]o supply for use by pupils attending nonpublic schools
within the district such standardized tests and scoring services as
are in use in the public schools of the state."
Ohio Rev.Code Ann. § 3317.06(J) (Supp. 1976). We held that this
provision, which was aimed at providing the young with an adequate
secular education, reflected a secular state purpose. As the
opinion of MR. JUSTICE BLACKMUN stated,
"[t]he State may require that schools that are utilized to
fulfill the State's compulsory education requirement meet certain
standards of instruction, . . . and may examine both
Page 444 U. S. 654
teachers and pupils to ensure that the State's legitimate
interest is being fulfilled."
Wolman v Walter, supra
at 433 U. S. 240
See Levitt I,
413 U.S. at 413 U. S.
-480, n. 7; Lemon v. Kurtzman, supra
403 U. S. 614
MR. JUSTICE BLACKMUN further explained that, under the Ohio
provision, the nonpublic school did not control the content of the
test or its result. This "serves to prevent the use of the test as
a part of religious teaching, and thus avoids that kind of direct
aid to religion found present in Levitt [I].
433 U.S. at 433 U. S. 240
The provision of testing services hence did not have the primary
effect of aiding religion. Ibid.
It was also decided that
"the inability of the school to control the test eliminates the
need for the supervision that gives rise to excessive
-241. We thus concluded that the Ohio statute,
insofar as it concerned examinations, passed our Establishment
We agree with the District Court that Wolman v. Walter
controls this case. Although the Ohio statute under review in
and the New York statute before us here are not
identical, the differences are not of constitutional dimension.
Addressing first the testing provisions, we note that here, as in
there is clearly a secular purpose behind the
"[T] o provide educational opportunity of a quality which will
prepare [New York] citizens for the challenges of American life in
the last decades of the twentieth century."
1974 N.Y.Laws, ch. 507, § 1. Also like the Ohio statute, the New
York plan calls for tests that are prepared by the State and
administered on the premises by nonpublic school personnel. The
nonpublic school thus has no control whatsoever over the content of
the tests. The Ohio tests, however, were graded by the State; here,
there are three types of tests involved, one graded by the State
and the other two by nonpublic school personnel, with the costs of
the grading service, as well as the cost of administering all
Page 444 U. S. 655
tests, being reimbursed by the State. In view of the nature of
the tests, the District Court found that the grading of the
examinations by nonpublic school employees afforded no control to
the school over the outcome of any of the tests.
The District Court explained that the state-prepared tests are
primarily of three types: pupil evaluation program (PEP) tests,
comprehensive ("end-of-the-course") achievement tests, and Regents
Scholarship and College Qualifications Tests (RSCQT). 461 F. Supp.
at 1125. Each of the tests addresses a secular academic subject;
none deals with religious subject matter. [Footnote 4
] The RSCQT examinations are graded by State
Education Department personnel, and the District Court correctly
concluded that "the risk of [RSCQT examinations] being used for
religious purposes through grading is nonexistent." Id.
1128. The PEP tests, administered universally in grades 3 and 6 and
optionally in grade 9, are graded by nonpublic school employees,
"consist entirely of objective, multiple-choice questions, which
can be graded by machine and, even if graded by hand, afford the
schools no more control over the results than if the tests were
graded by the State."
The comprehensive tests, based on state courses
of study for use in grades 9 through 12, are also graded on the
premises by school employees, but "consist
Page 444 U. S. 656
largely or entirely of objective questions with multiple-choice
at 1125. Even though some of the
comprehensive tests may include an essay question or two,
the District Court found that the chance that
grading the answers to state-drafted questions in secular subjects
could or would be used to gauge a student's grasp of religious
ideas was "minimal," especially in light of the "complete" state
procedures designed to guard against serious inconsistencies in
grading and any misuse of essay questions. Id.
1128-1129. These procedures include the submission of completed and
graded comprehensive tests to the State Department of Education for
review off the school premises.
We see no reason to differ with the factual or legal
characterization of the testing procedure arrived at by the
District Court. As in Wolman v. Walter,
433 U.S. at
433 U. S. 240
"[t]he nonpublic school does not control the content of the test or
its result"; and here as in Wolman,
this factor "serves to
prevent the use of the test as a part of religious teaching,"
thus avoiding the kind of direct aid forbidden by
the Court's prior cases. The District Court was correct in
concluding that there was no substantial risk that the examinations
could be used for religious educational purposes.
The District Court was also correct in its characterization of
the recordkeeping and reporting services for which the State
reimburses the nonpublic school. Under the New York law,
"[e]ach year, private schools must submit to the State a Basic
Educational Data System (BEDS) report. This report contains
information regarding the student body, faculty, support staff,
physical facilities, and curriculum of each school. Schools are
also required to submit annually a report showing the attendance
record of each minor who is a student at the school."
461 F. Supp. at 1126. Although recordkeeping is related to the
educational program, the District Court characterized it and the
reporting function as "ministerial [and] lacking ideological
content or use." Id.
Page 444 U. S. 657
at 1130. These tasks are not part of the teaching process, and
cannot "be used to foster an ideological outlook." Ibid.
Reimbursement for the costs of so complying with state law,
therefore, has primarily a secular, rather than a religious,
purpose and effect. [Footnote
The New York statute, unlike the Ohio statute at issue in
provides for direct cash reimbursement to the
nonpublic school for administering the state-prescribed
examinations and for grading two of them. We agree with the
District Court that such reimbursement does not invalidate the New
York statute. If the State furnished state-prepared tests, thereby
relieving the nonpublic schools of the expense of preparing their
own examinations, but left the grading of the tests to the schools,
and if the grading procedures could be used to further the
religious mission of the school, serious Establishment Clause
problems would be posed under the Court's cases, for, by furnishing
the tests, it might be concluded that the State was directly aiding
religious education. But as we have already concluded, grading the
secular tests furnished by the State in this case is a function
that has a secular purpose and primarily a secular effect. This
conclusion is not changed simply because the State pays the school
Page 444 U. S. 658
the grading function. As the District Court observed,
"[p]utting aside the question of whether direct financial aid
can be administered without excessive entanglement by the State in
the affairs of a sectarian institution, there does not appear to be
any reason why payments to sectarian schools to cover the cost of
specified activities would have the impermissible effect of
advancing religion if the same activities performed by sectarian
school personnel without reimbursement but with State-furnished
materials have no such effect."
461 F. Supp. at 1129.
A contrary view would insist on drawing a constitutional
distinction between paying the nonpublic school to do the grading
and paying state employees or some independent service to perform
that task, even though the grading function is the same regardless
of who performs it and would not have the primary effect of aiding
religion whether or not performed by nonpublic school personnel. In
either event, the nonpublic school is being relieved of the cost of
grading state-required, state-furnished examinations. We decline to
embrace a formalistic dichotomy that bears so little relationship
either to common sense or to the realities of school finance. None
of our cases requires us to invalidate these reimbursements simply
because they involve payments in cash. The Court
"has not accepted the recurrent argument that all aid is
forbidden because aid to one aspect of an institution frees it to
spend its other resources on religious ends."
Hunt v. McNair, 413 U. S. 734
413 U. S. 743
(1973). [Footnote 6
the recordkeeping and
Page 444 U. S. 659
reporting functions also have neither a religious purpose nor a
primarily religious effect, we reach the same results with respect
to the reimbursements for these services.
Of course, under the relevant cases, the outcome would likely be
different were there no effective means for insuring that the cash
reimbursements would cover only secular services. See Levitt
413 U.S. at 413 U. S. 480
Committee for Public Education v. Nyquist,
413 U.S. at
413 U. S. 774
Lemon v. Kurtzman,
403 U.S. at 403 U. S.
-622. But here, as we shall see, the New York law
provides ample safeguards against excessive or misdirected
The District Court recognized that,
"[w]here a state is required in determining what aid, if any,
may be extended to a sectarian school, to monitor the day-to-day
activities of the teaching staff, to engage in onerous, direct
oversight, or to make on-site judgments from time to time as to
whether different school activities are religious in character, the
risk of entanglement is too great to permit governmental
461 F. Supp. at 1130. After examining the New York statute and
its operation, however, the District Court concluded that "[t]he
activities subsidized under the Statute here at issue . . . do not
pose any substantial risk of such entanglement." Ibid.
The District Court described the process of reimbursement:
"Schools which seek reimbursement must 'maintain a separate
account or system of accounts for the expenses incurred in
rendering' the reimbursable services, and they must submit to the
N.Y. State Commissioner of Education an application for
reimbursement with additional reports and documents prescribed by
the Commissioner. . . . Reimbursable costs include proportionate
shares of the teachers' salaries and fringe benefits
Page 444 U. S. 660
to administration of the examinations and reporting of
State-required data on pupil attendance and performance, plus the
cost of supplies and other contractual expenditures such as data
processing services. Applications for reimbursement cannot be
approved until the Commissioner audits vouchers or other documents
submitted by the schools to substantiate their claims. . . . The
Statute further provides that the State Department of Audit and
Control shall from time to time inspect the accounts of recipient
schools in order to verify the cost to the schools of rendering the
reimbursable services. If the audit reveals that a school has
received an amount in excess of its actual costs, the excess must
be returned to the State immediately. . . ."
at 1126, quoting 1974 N.Y. Laws, ch. 507.
We agree with the District Court that "[t]he services for which
the private schools would be reimbursed are discrete and clearly
identifiable." 461 F. Supp. at 1131. [Footnote 7
] The reimbursement process, furthermore, is
straightforward and susceptible to the routinization that
characterizes most reimbursement schemes. On its face, therefore,
the New York plan suggests no excessive entanglement, and we are
not prepared to read into the plan as an inevitability the bad
Page 444 U. S. 661
upon which any future excessive entanglement would be
predicated. [Footnote 8
It is urged that the District Court judgment is unsupportable
under Meek v. Pittenger, 421 U. S. 349
(1975), which is said to have held that any aid to even secular
educational functions of a sectarian school is forbidden, or more
broadly still, that any aid to a sectarian school is suspect since
its religious teaching is so pervasively intermixed with each and
every one of its activities. Brief for Appellants 9-11. The
difficulty with this position is that a majority of the Court,
including the author of Meek v. Pittenger,
a state statute under which the State, by preparing
and grading tests in secular subjects, relieved sectarian schools
of the cost of these functions, functions that they otherwise would
have had to perform themselves and that were intimately connected
with the educational processes. Yet the Wolman
no point suggested that this holding was inconsistent with the
decision in Meek.
Unless the majority in Wolman
was silently disavowing Meek
in whole or in part, that
case was simply not understood by this Court to stand for the broad
proposition urged by appellants and espoused by the District Court
in Levitt II.
was understood more narrowly was suggested by
MR. JUSTICE POWELL in his separate opinion in Wolman:
am not persuaded," he said, "nor did Meek
hold, that all
Page 444 U. S. 662
of secular instructional material and equipment" inescapably
have the effect of direct advancement of religion. 433 U.S. at
443 U. S. 263
And obviously the testing services furnished by the State in
were approved on the premise that those services
did not and could not have the primary effect of advancing the
sectarian aims of the nonpublic schools. With these indicators
before it, the District Court properly put the two cases together
and sustained the reimbursements involved here because it had been
shown with sufficient clarity that they would serve the State's
legitimate secular ends without any appreciable risk of being used
to transmit or teach religious views.
This is not to say that this case, any more than past cases,
will furnish a litmus paper test to distinguish permissible from
impermissible aid to religiously oriented schools. But
Establishment Clause cases are not easy; they stir deep feelings;
and we are divided among ourselves, perhaps reflecting the
different views on this subject of the people of this country. What
is certain is that our decisions have tended to avoid categorical
imperatives and absolutist approaches at either end of the range of
possible outcomes. This course sacrifices clarity and
predictability for flexibility, but this promises to be the case
until the continuing interaction between the courts and the States
-- the former charged with interpreting and upholding the
Constitution and the latter seeking to provide education for their
youth -- produces a single, more encompassing construction of the
The judgment of the District Court is
The First Amendment provides that "Congress shall make no law
respecting an establishment of religion. . . ." This Court has
repeatedly held the Establishment Clause applicable to the States
through the Fourteenth Amendment. E.g., Meek v. Pittenger,
421 U. S. 349
421 U. S. 351
(1975); Cantwell v. Connecticut, 310 U.
, 310 U. S. 303
The majority in Levitt I
"We hold that the lump-sum payments under Chapter 138 violate
the Establishment Clause. Since Chapter 138 provides only for a
single per-pupil allotment for a variety of specified services,
some secular and some potentially religious, neither this Court nor
the District Court can properly reduce that allotment to an amount
corresponding to the actual costs incurred in performing
reimbursable secular services. That is a legislative, not a
413 U.S. at 413 U. S.
Chapter 507, 1974 N.Y. Laws, as amended by ch. 508, note
following N.Y.Educ.Law § 3601 (McKinney Supp. 1971-1979), provides
in relevant part:
"Section 1. Legislative findings. The legislature hereby finds
and declares that: "
"The state has the responsibility to provide educational
opportunity of a quality which will prepare its citizens for the
challenges of American life in the last decades of the twentieth
"To fulfill this responsibility, the state has the duty and
authority to evaluate, through a system of uniform state testing
and reporting procedures, the quality and effectiveness of
instruction to assure that those who are attending instruction, as
required by law, are being adequately educated within their
"In public schools these fundamental objectives are accomplished
in part through state financial assistance to local school
"More than seven hundred thousand pupils in the state comply
with the compulsory education law by attending nonpublic schools.
It is a matter of state duty and concern that such nonpublic
schools be reimbursed for the actual costs which they incur in
providing services to the state which they are required by law to
render in connection with the state's responsibility for reporting,
testing and evaluating."
"* * * *"
"§ 3. Apportionment. The commissioner shall annually apportion
to each qualifying school, for school years beginning on and after
July first, nineteen hundred seventy-four, an amount equal to the
actual cost incurred by each such school during the preceding
school year for providing services required by law to be rendered
to the state in compliance with the requirements of the state's
pupil evaluation program, the basic educational data system,
regents examinations, the state-wide evaluation plan, the uniform
procedure for pupil attendance reporting, and other similar state
prepared examinations and reporting procedures."
"* * * *"
"§ 7. Audit. No application for financial assistance under this
act shall be approved except upon audit of vouchers, or other
documents by the commissioner as are necessary to insure that such
payment is lawful and proper."
"The state department of audit and control shall from time to
time examine any and all necessary accounts and records of a
qualifying school to which an apportionment has been made pursuant
to this act for the purpose of determining the cost to such school
of rendering the services referred to in section three of this act.
If after such audit it is determined that any qualifying school has
received funds in excess of the actual cost of providing the
services enumerated in section three of this act, such school shall
immediately reimburse the state in such excess amount."
"* * * *"
"§ 9. In enacting this chapter it is the intention of the
legislature that, if section seven or any other provision of this
act or any rules or regulations promulgated thereunder shall be
held by any court to be invalid in whole or in part or inapplicable
to any person or situation, all remaining provisions or parts
thereof or remaining rules and regulations or parts thereof not so
invalidated shall nevertheless remain fully effective as if the
invalidated portion had not been enacted or promulgated, and the
application of any such invalidated portion to other persons not
similarly situated or other situations shall not be affected
PEP tests are
"standardized reading and mathematics achievement tests
developed and published by the Educational Department and based on
New York State courses of study."
App. 28a. Comprehensive tests correspond to the following
subject areas: biology; bookkeeping and accounting II; business
law; business mathematics; chemistry; earth science; English;
French; German; Hebrew; Italian; Latin; 9th-year mathematics;
10th-year mathematics; 11th-year mathematics; physics; shorthand II
and transcription; social studies; and Spanish. 461 F. Supp. at
1125, n. 3. The RSCQT tests are divided into two parts. Part 1 is a
"test of general scholastic aptitude, containing questions intended
to measure ability to think clearly and accurately." App. 38a. Part
2 is "a test of subject matter achievement directly related to
courses studied in high school." Ibid.
Clearly, the tests at issue are secular in character.
The recordkeeping function, according to the parties'
stipulation of facts, involves
"collection of data requested from homeroom teachers, pupil
personnel services staff, attendance secretaries and
administrators; compilation and correlation of data; and filling
out and mailing of report."
App. 31a. The attendance-taking function is described in similar
ministerial terms. Id.
at 37a. Of interest is the District
Court's finding that
"[t]he lion's share of the reimbursements to private schools
under the Statute would be for attendance-reporting. According to
applications prepared by intervenor-defendant private schools for
the 1973-1974 school year, between 85% and 95 of the total
reimbursement is accounted for by the costs attributable to
attendance-taking, of which all but a negligible portion represents
compensation to personnel for this service."
461 F. Supp. at 1126.
As MR. JUSTICE BLACKMUN wrote in Roemer v. Maryland Public
Works Bd., 426 U. S. 736
426 U. S. 747
(1976) (footnote omitted):
"The Court has not been blind to the fact that, in aiding a
religious institution to perform a secular task, the State frees
the institution's resources to be put to sectarian ends. If this
were impermissible, however, a church could not be protected by the
police and fire departments, or have its public sidewalk kept in
repair. The Court never has held that religious activities must be
discriminated against in this way."
Cf. New York v. Cathedral Academy, 434 U.
, 434 U. S. 134
(1977) ("[T]his Court has never held that freeing private funds for
sectarian uses invalidates otherwise secular aid to religious
institutions . . .").
As the District Court wrote:
"The services for which the private schools would be reimbursed
are discrete and clearly identifiable. A teacher's taking of
attendance, administration of examinations, and recordkeeping can
hardly be confused with his or her other activities. Although there
might be a possibility of fraud or mistake in the records submitted
by private schools of the teachers' time spent on such activities,
the careful auditing procedures anticipated by § 7 of the Statute
should provide an adequate safeguard against inflated claims. In
addition, since the services subsidized under the Statute are
highly routinized, costs of the services for a given size of class
should vary little from school to school, thus enabling the State
to check claims filed by private schools against records maintained
by hundreds of public schools under State supervision."
461 F. Supp. at 1131 (footnote omitted).
We find no merit whatever in appellants' argument, which was not
made below, that the extent of entanglement here is sufficient to
raise the danger of future political divisiveness along religious
lines. Brief for Appellants 16-18. Wolman
without reference to any such potential discord. Moreover, the New
York plan reimburses "actual costs." Thus, it cannot be maintained
that the New York system will provoke religious battles over
legislative appropriations, an eventuality that could conceivably
occur under a system of state aid involving direct appropriations.
Cf. Committee for Public Education v. Nyquist,
413 U. S. 756
413 U. S.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
The Court in this case, I fear, takes a long step backwards in
the inevitable controversy that emerges when a state legislature
continues to insist on providing public aid to parochial
Page 444 U. S. 663
I thought that the Court's judgments in Meek v.
Pittenger, 421 U. S. 349
(1975), and in Wolman v. Walter, 433 U.
(1977) (which the Court concedes, ante
at 444 U. S. 654
is the controlling authority here), at last had fixed the line
between that which is constitutionally appropriate public aid and
that which is not. The line necessarily was not a straight one. It
could not be, when this Court, on the one hand, in Everson v.
Board of Education, 330 U. S. 1
by a 5-4 vote, decided that there was no barrier under the First
and Fourteenth Amendments to parental reimbursement of the cost of
fares for the transportation of children attending parochial
schools, and in Board of Education v. Allen, 392 U.
(1968), by a 6-3 vote, ruled that New York's
lending of approved textbooks to students in private secondary
schools was not violative of those Amendments, and yet, on the
other hand, in Lemon v. Kurtzman, 403 U.
(1971), struck down, as violative of the Religion
Clauses, statutes that, respectively, would have supplemented
nonpublic school teachers' salaries and would have authorized the
"purchase" of certain "secular educational services" from nonpublic
schools, and also in Levitt v. Committee for Public
Education, 413 U. S. 472
(1973) (Levitt I
), struck down New York's previous attempt
to reimburse nonpublic schools for the expenses of tests and
examinations. See also Committee for Public Education v.
Nyquist, 413 U. S. 756
(1973), where the Court nullified New York's financial aid programs
for "maintenance and repair" of facilities and equipment, a tuition
reimbursement plan, and tax relief for parents who did not qualify
for tuition reimbursement, and Sloan v. Lemon,
413 U. S. 825
(1973), where the Court ruled invalid a state plan for parental
reimbursement of a portion of nonpublic school tuition expenses.
And see Roemer v. Maryland Public Works Bd., 426 U.
But, I repeat, the line, wavering though it may be, was indeed
drawn in Meek
and in Wolman,
Page 444 U. S. 664
combinations of Justices, those who perceive no barrier under
the First and Fourteenth Amendments and who would rule in favor of
almost any aid a state legislature saw fit to provide, on the one
hand, and those who perceive a broad barrier and would rule against
aid of almost any kind, on the other hand, in turn joining Justices
in the center on these issues, to make order and a consensus out of
the earlier decisions. Now, some of those who joined in Lemon,
Levitt I, Meek,
in invalidating, depart
and validate. I am able to attribute this defection only to a
concern about the continuing and emotional controversy and to a
persuasion that a good faith attempt on the part of a state
legislature is worth a nod of approval.
In order properly to analyze the amended school aid plan that
the New York Legislature produced in response to its defeat in
it is imperative, it seems to me, to examine the
statute's operational details with great precision and with fewer
generalities than the Court does today. One should do more than
give a passing glance at selected provisions of the statute, and
one should not ignore the considerations that prompted the
three-judge District Court initially and unanimously to hold New
York's revised plan to be unconstitutional, Committee for
Public Education v. Levitt, 414 F.
(SDNY 1976) (Levitt II
), and that prompted
Judge Ward, in his persuasive dissent in Levitt III, Committee
for Public Education v. Levitt, 461
F. Supp. 1123
(SDNY 1978), after our remand, to differ so
vigorously with his two colleagues who meanwhile changed their
minds, mistakenly in my view.
The Court, ante
at 444 U. S. 653
and all three judges of the District Court, 461 F. Supp. at 1126,
1131, n. 1, are correct, of course, in recognizing that the
"mode of analysis for Establishment
Page 444 U. S. 665
Clause questions is defined by the three-part test that has
emerged from the Court's decisions."
Wolman v. Walter,
433 U.S. at 433 U. S.
-236 (plurality opinion). To pass constitutional
muster under this test, the New York statute now challenged,
Chapter 507, 1974 N.Y.Laws, as amended,
"must have a secular legislative purpose, must have a principal
or primary effect that neither advances nor inhibits religion, and
must not foster an excessive government entanglement with
433 U.S. at 433 U. S.
I have no trouble in agreeing with the Court that Chapter 507
manifests a clear secular purpose. See Levitt I,
at 413 U. S. 479
n. 7. I therefore would evaluate Chapter 507 under the two
remaining inquiries of the three-part test.
In deciding whether Chapter 507 has an impermissible primary
effect of advancing religion, or whether it fosters excessive
government entanglement with sectarian affairs, one must keep in
focus the nature of the assistance prescribed by the New York
statute. The District Court found that $8-$10 million annually
would be expended under Chapter 507, with the great majority of
these funds going to sectarian schools to pay for personnel costs
associated with attendance reporting. The court found that such
payments would amount to from 1% to 5.4% of the personnel budget of
an individual religious school receiving assistance under Chapter
507. Moreover, Chapter 507 provides direct cash payments by the
State of New York to religious schools, as opposed to providing
services or providing cash payments to third parties who have
rendered services. And the money paid sectarian schools under
Chapter 507 is designated to reimburse costs that are incurred by
religious schools in order to meet basic state testing and
reporting requirements, costs that would have been incurred
regardless of the availability of reimbursement from the State.
This direct financial assistance provided by Chapter 507 differs
significantly from the types of state aid to religious schools
approved by the Court in Wolman v. Walter.
Page 444 U. S. 666
example, in Wolman,
the Court approved that portion of
the Ohio statute that provided to religious schools the
standardized tests and scoring services furnished to public
schools. But, unlike New York's Chapter 507, Ohio's statute
provided only the tests themselves and scoring by employees of
neutral testing organizations. It did not authorize direct
financial aid of any type to religious schools. Wolman v.
433 U.S. at 433 U. S.
-239, and n. 7 (plurality opinion).
Similarly, the other forms of assistance upheld in
did not involve direct cash assistance. Rather, the
Court approved the State's providing sectarian school students
therapeutic, remedial, and guidance programs administered by public
employees on public property. It also approved certain public
health services furnished by public employees to religious school
pupils, even though administered in part on the sectarian premises,
on the basis of its recognition in a number of cases, see,
e.g., Meek v. Pittenger,
421 U.S. at 421 U. S. 364
421 U. S. 368
n. 17, that provision of health services to all schoolchildren does
not advance religion so as to contravene the Establishment Clause.
433 U.S. at 433 U. S.
-248. And it upheld the lending by Ohio of textbooks
to pupils under the "unique presumption," id.
433 U. S. 252
n. 18, created by Board of Education v. Allen,
392 U. S. 236
(1968), and reaffirmed since that time. E.g., Meek v.
421 U.S. at 421 U. S.
-362 (plurality opinion); id.
421 U. S. 388
(opinion concurring in judgment in part and dissenting in
It is clear, however, that none of the programs upheld in
provided direct financial support to sectarian
schools. At the very least, then, the Court's holding today goes
further in approving state assistance to sectarian schools than the
Court had gone in past decisions. But beyond merely failing to
approve the type of direct financial aid at issue in this case,
reaffirmed the finding of the Court in Meek v.
that direct aid to the educational function of
religious schools necessarily advances the sectarian enterprise as
Page 444 U. S. 667
Thus, the Court in Wolman
invalidated Ohio's practice
of loaning instructional materials directly to sectarian
"even though the loan ostensibly was limited to neutral and
secular instructional material and equipment, [because] it
inescapably had the primary effect of providing a direct and
substantial advancement of the sectarian enterprise."
433 U.S. at 433 U. S. 250
In the same vein, the Court disapproved Ohio's provision of
field-trip transportation directly to religious schools as
impermissible direct aid that, because of the pervasively religious
nature of the schools involved, furthered the religious goals of
the schools, and that also required government surveillance of
expenditures to such a degree as to foster entanglement of the
State in religion. Id.
at 433 U. S.
thus reenforces the conclusion that substantial
direct financial aid to a religious school, even though ostensibly
for secular purposes, runs the great risk of furthering the
religious mission of the school as a whole because that religious
mission so pervades the functioning of the school. The Court
specifically recognized this in Meek:
"[F]aced with the substantial amounts of direct support
authorized by [the statute at issue], it would simply ignore
reality to attempt to separate secular educational functions from
the predominantly religious role performed by many . . .
church-related elementary and secondary schools and to then
characterize [the statute] as channeling aid to the secular without
providing direct aid to the sectarian. Even though earmarked for
secular purposes, 'when it flows to an institution in which
religion is so pervasive that a substantial portion of its
functions are subsumed in the religious mission,' state aid has the
impermissible primary effect of advancing religion. Hunt v.
McNair, 413 U. S. 734
, 413 U. S.
421 U.S. at 421 U. S.
-366. See Wolman v. Walter,
433 U.S. at
433 U. S.
-250; Committee for Public Education v.
413 U.S. at 431 U. S.
-783, and n. 39.
Page 444 U. S. 668
Under the principles announced in these decided cases, I am
compelled to conclude that Chapter 507, by providing substantial
financial assistance directly to sectarian schools, has a primary
effect of advancing religion. The vast majority of the schools
aided under Chapter 507 typify the religious-pervasive institution
the very purpose of which is to provide an integrated secular and
sectarian education. The aid provided by Chapter 507 goes primarily
to reimburse such schools for personnel costs incurred in complying
with state reporting and testing requirements, costs that must be
incurred if the school is to be accredited to provide a combined
sectarian-secular education to school-age pupils. To continue to
function as religious schools, sectarian schools thus are required
to incur the costs outlined in 3 of Chapter 507, or else lose
accreditation by the State of New York. See, e.g.,
N.Y.Educ.Law § 3210, 3211 (McKinney 1970). These reporting and
testing requirements would be met by the schools whether
reimbursement were available or not. As such, the attendance,
informational, and testing expenses compensated by Chapter 507 are
essential to the overall educational functioning of sectarian
schools in New York in the same way instruction in secular subjects
is essential. Therefore, just as direct aid for ostensibly secular
purposes by provision of instructional materials or direct
financial subsidy is forbidden by the Establishment Clause, so
direct aid for the performance of recordkeeping and testing
activities that are an essential part of the sectarian school's
functioning also is interdicted. The Court stated in Meek,
and reaffirmed in Wolman:
"The very purpose of many [religious] schools is to provide an
integrated secular and religious education; the teaching process
is, to a large extent, devoted to the inculcation of religious
values and belief. See Lemon v. Kurtzman,
403 U.S. at
430 U. S. 616
Substantial aid to the educational function of such schools,
accordingly, necessarily results in aid to the sectarian school
Page 444 U. S. 669
"[T]he secular education those schools provide goes hand in hand
with the religious mission that is the only reason for the schools'
existence. Within the institution, the two are inextricably
at 430 U. S. 657
421 U.S. at 421 U. S. 366
quoted in 433 U.S. at 433 U. S.
It is also true that the keeping of pupil attendance records is
essential to the religious mission of sectarian schools. To ensure
that the school is fulfilling its religious mission properly, it is
necessary to provide a way to determine whether pupils are
attending the sectarian classes required of them. Accordingly,
Chapter 507 not only advances religion by aiding the educational
mission of the sectarian school as a whole; it also subsidizes
directly the religious mission of such schools. Chapter 507 makes
no attempt, and none is possible, to separate the portion of the
overall expense of attendance-taking attributable to the desire to
ensure that students are attending religious instruction from that
portion attributable to the desire to ensure that state attendance
laws are complied with. This type of direct aid the Establishment
Clause does not permit. Committee for Public Education v.
413 U.S. at 413 U. S.
-780; Levitt I,
413 U.S. at 413 U. S.
I thus would hold that the aid provided by Chapter 507
constitutes a direct subsidy of the operating costs of the
sectarian school that aids the school as a whole, and that the
statute therefore directly advances religion in violation of the
Establishment Clause of the First Amendment.
Beyond this, Chapter 507 also fosters government entanglement
with religion to an impermissible extent. Unlike Wolman,
under Chapter 507 sectarian employees are compensated by the State
for grading examinations. In some cases, such grading requires the
teacher to exercise subjective judgment. For the State properly to
ensure that judgment is
Page 444 U. S. 670
not exercised to inculcate religion, a "comprehensive,
discriminating, and continuing state surveillance will inevitably
be required." Lemon v. Kurtzman,
403 U.S. at 403 U. S.
Moreover, Chapter 507 provides for continuing reimbursement with
regard to examinations in which the questions may vary from year to
year, and for examinations that may be offered in the future. This
will require the State continually to evaluate the examinations to
ensure that reimbursement for expenses incurred in connection with
their administration and grading will not offend the First
Amendment. This, too, fosters impermissible government involvement
in sectarian affairs, since it is likely to lead to continuing
adjudication of disputes between the State and others as to whether
certain questions or new examinations present such opportunities
for the advancement of religion that reimbursement for
administering and grading them should not be permitted. Cf. New
York v. Cathedral Academy, 434 U. S. 125
Finally, entanglement also is fostered by the system of
reimbursement for personnel expenses. The State must make sure that
it reimburses sectarian schools only for those personnel costs
attributable to the sectarian employees' secular activities
described in § 3 of Chapter 507. It is difficult to see how the
State adequately may discover whether the time for which
reimbursement is made available was devoted only to secular
activities without some type of ongoing surveillance of the
sectarian employees and religious schools at issue. It is this type
of extensive entanglement that the Establishment Clause forbids.
Lemon v. Kurtzman,
403 U.S. at 403 U. S.
-621. I fail to see, and I am uncomfortable with, the
so-called "ample safeguards," ante
at 444 U. S. 659
upon which the Court and the District Court's majority, Levitt
461 F. Supp. at 1131, are content to rest so assured.
I therefore conclude that Chapter 507 has a primary effect of
advancing religion and also fosters excessive government
entanglement with religion. The statute, consequently, is
unconstitutional under the Establishment Clause,
Page 444 U. S. 671
at least to the extent it provides reimbursement directly to
sectarian nonpublic schools.
I would reverse the judgment of the District Court.
MR. JUSTICE STEVENS, dissenting.
Although I agree with MR. JUSTICE BLACKMUN's demonstration of
why today's holding is not compelled by precedent, my vote also
rests on a more fundamental disagreement with the Court. The
Court's approval of a direct subsidy to sectarian schools to
reimburse them for staff time spent in taking attendance and
grading standardized tests is but another in a long line of cases
making largely ad hoc
decisions about what payments may or
may not be constitutionally made to nonpublic schools. In groping
for a rationale to support today's decision, the Court has taken a
position that could equally be used to support a subsidy to pay for
staff time attributable to conducting fire drills or even for
constructing and maintaining fireproof premises in which to conduct
classes. Though such subsidies might represent expedient fiscal
policy, I firmly believe they would violate the Establishment
Clause of the First Amendment.
The Court's adoption of such a position confirms my view,
expressed in Wolman v. Walter, 433 U.
, 433 U. S. 264
(STEVENS, J., concurring in part and dissenting in part), and
Roemer v. Maryland Public Works Bd., 426 U.
, 426 U. S. 775
(STEVENS, J., dissenting), that the entire enterprise of trying to
justify various types of subsidies to nonpublic schools should be
abandoned. Rather than continuing with the sisyphean task of trying
to patch together the "blurred, indistinct, and variable barrier"
described in Lemon v. Kurtzman, 403 U.
, 403 U. S. 614
I would resurrect the "high and impregnable" wall between church
and state constructed by the Framers of the First Amendment.
See Everson v. Board of Education, 330 U. S.
, 330 U. S. 18